Some Provocative Suggestions for Drafting Prenuptial ... · attempt at divorce to defeat the prenuptial agreement. disclaimer Please understand that I am not advising anyone to use

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Some Provocative Suggestions for DraftingPrenuptial Contracts in the USA

Copyright 2004 by Ronald B. Standlerno claim of copyright for text quoted from works of the U.S. or state governments

Keywordsagreement, agreements, antenuptial, attorney, attorney’s, attorneys’, choice, clause,

contract, contracts, divorce, drafting, law, lawyer, lawyer’s, legal, marital,

marriage, postmarital, premarital, postnuptial, prenuptial, severability, USA, writing

Table of Contents

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2disclaimer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

1. Loser Pays Winner’s Legal Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3contract litigation not involving divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4divorce cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5remarks about fee shifting in conventional divorce litigation . . . . . . . . . . . . . . . . . . . . . . . . 9

1.A. Another Attorney’s Fees Proposal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

2. Integrated Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14contract litigation not involving divorce . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15divorce cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

3. Validity of Prenuptial Contract a Condition for Marriage? . . . . . . . . . . . . . . . . . . . . . . . . . 19

4. Severability or Savings Clauses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

5. Choice of Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

6. Risk Allocation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28


Introduction

In my previous essay, Prenuptial and Postnuptial Contract Law in the USA, athttp://www.rbs2.com/dcontract.pdf , I reviewed some of the history of these contracts and thelimits on their validity.

In this essay, I suggest how some well-established elements of commercial contract draftingmight be used to improve conventional prenuptial contracts.

In divorce litigation one party often challenges not only the validity of a prenuptial contract,but also the fairness of specific terms in a prenuptial contract, because the prenuptial contractreduces the amount of money they would otherwise receive in a property settlement at divorce. This essay suggests several devices from conventional contract law that could prevent such anattempt at divorce to defeat the prenuptial agreement.

disclaimer

Please understand that I am not advising anyone to use the provocative ideas in this essay intheir prenuptial agreement. I address these provocative suggestions to attorneys, who specialize infamily law, to consider in appropriate situations.

If you are not an attorney, and you are contemplating writing your own prenuptial contact,please consult an experienced family law attorney who is licensed to practice in your state. Like surgery, this is not a playground for amateurs.

This essay is intended only to present general information about an interesting topic in law andis not legal advice for your specific problem. See my disclaimer at http://www.rbs2.com/disclaim.htm .

The purpose of this essay is to make some provocative suggestions, not to present a thoroughreview of the case law. Therefore, when I wrote this essay in March-April 2004, I only did a fewquick searches of the Westlaw ALLSTATES database, but not painstakingly thorough searches.

I list the cases in chronological order in this essay, so the reader can easily follow the historicaldevelopment of a national phenomenon. If I were writing a legal brief, then I would use theconventional citation order given in the Bluebook.

http://www.rbs2.com/dcontract.pdf

http://www.rbs2.com/disclaim.htm


I use the words “agreement” and “contract” as synonyms in this essay. Also, the words

“prenuptial”, “antenuptial”, and “premarital” are synonyms. I personally prefer “prenuptial”,while most judges seem to prefer “antenuptial”. Because I do not know which words a reader willuse in a search engine query, using a variety of different words increases the probability that areader will be able to find this essay.

1. Loser Pays Winner’s Legal Fees

It seems wasteful to spend a few tens of thousands of dollars in litigating the validity of theprenuptial agreement during the divorce litigation. As explained below, beginning at page 9,divorce courts have required the party with the larger income at divorce to pay his/her [soon-to-be]ex-spouse’s attorney’s fees, in addition to his/her own attorney’s fees. Can a prenuptial contractavoid this waste of money?

In commercial contracts that I draft, I often include a section that makes the loser pay thewinning party’s legal fees in any litigation about the contract. Such a section encourages the partiesto be reasonable and to settle their differences through negotiations, rather than use expensive andslow litigation. A typical contract might say:

The parties agree that in any litigated dispute, whether intort or contract, arising out of this contract, the prevailingparty in litigation shall be reimbursed by the losing party forall costs, reasonable expenses of litigation, and allreasonable attorney’s fees that are incurred by the prevailingparty.

Following this model of a commercial contract, why not include the following in a prenuptialagreement?

The parties agree that in any litigated dispute about eitherthe validity of this contract or about the interpretation ofthis contract, the prevailing party in litigation shall bereimbursed by the losing party for both all reasonableattorney’s fees and all reasonable expenses of litigation thatare incurred by the prevailing party in litigating the disputeover validity or interpretation of this contract. Suchreimbursement includes amounts spent in litigation in bothtrial courts and appellate courts.

Before the mid-1990s, such ideas might be rejected by a judge in divorce court, as overreaching bythe party with the larger income at divorce, particularly if the other party can not adequately supportherself/himself. However, as discussed below, a few divorce courts have enforced such a clausein a prenuptial contract.


contract litigation not involving divorce

In the USA, litigants usually pay their own attorney’s fees, but courts will enforce contractualagreements between parties about reimbursement of reasonable legal fees. For the convenience ofspecialists in family law who may not be familiar with commercial contract law, I list some recentdecisions in the Northeastern USA about reimbursement of attorney’s fees in cases not involvingdivorce.

U.S. Supreme Court Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717(U.S. 1967) (“The rule here has long been that attorney's fees are not ordinarily recoverable in theabsence of a statute or enforceable contract providing therefor.”); F. D. Rich Co., Inc. v. U. S. forUse of Indus. Lumber Co., Inc., 417 U.S. 116, 126-31 (U.S. 1974)(discussion of “AmericanRule”); Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247-68 (U.S. 1975)(gives detailed history of “American Rule” that requires each party to pay their own legal fees andlists exceptions to American Rule, such as an enforceable contract).

Maryland Qualified Builders, Inc. v. Equitable Trust Co., 331 A.2d 293, 296 (Md. 1975)(dictathat there is no doubt that contract can entitle someone to reimbursement of attorney’s fees); Atlantic Contracting & Material Co., Inc. v. Ulico Cas. Co., 2004 WL 443885, *15-*16 (Md.12 Mar 2004). Massachusetts Preferred Mut. Ins. Co. v. Gamache, 686 N.E.2d 989, 991-92 (Mass. 1997); Police Commissioner of Boston v. Gows, 705 N.E.2d 1126, 1128-29 (Mass. 1999). New Jersey Community Realty Management, Inc. for Wrightstown Arms Apartments v. Harris, 714 A.2d 282, 293 (N.J. 1998); North Bergen Rex Transport, Inc. v. Trailer Leasing Co.,a Division of Keller Systems, Inc., 730 A.2d 843, 848 (N.J. 1999). New York Hooper Associates, Ltd. v. AGS Computers, Inc., 548 N.E.2d 903, 904, 549 N.Y.S.2d 365, 366 (N.Y. 1989)(“Under the general rule, attorney’s fees are incidents oflitigation and a prevailing party may not collect them from the loser unless an award is authorizedby agreement between the parties, statute or court rule [citations omitted].”), quoted with approvalin Baker v. Health Management Systems, Inc., 772 N.E.2d 1099, 1104, 745 N.Y.S.2d 741, 746(N.Y. 2002).


divorce cases

The following cases are listed in chronological order, to reflect the historical development ofwhat I hope will become a national trend. My most recent search for cases on this topic was on22 March 2004.

• Appelbaum v. Appelbaum, 620 So.2d 1293 (Fla.App. 4 Dist. 1993).Prenuptial agreement waived attorney’s fees. Despite the fact that wife’s net worth was $658,000,the trial court ordered her husband to pay $58,000 of her attorney’s fees. The Florida appellatecourt reversed, saying:

The trial court, impliedly recognizing that this was a case of fee-building, stated: It is painfully apparent to this Court, after four days of testimony, that the

primary reason this case dragged on for that length of time was the attempt by eachparty to establish either the right to attorney's fees as far as the wife was concernedor the denial of the payment of attorney's fees as far as the husband was concerned.

....Under these circumstances we think it is an abuse of discretion to award attorney's fees to

a wife who with substantial means (and whose means have only grown during the marriage)agreed prior to marriage not to seek fees and costs. This is particularly true when the trialcourt considered that a substantial portion of this case was litigated just to gain a fee award.

Appelbaum, 620 So.2d at 1294-95. • In re Marriage of Christen, 899 P.2d 339, 344 (Colo.App. 1995).In a terse remark, a Colorado appellate court upheld a provision in a postnuptial contract thatawarded attorney’s fees to the prevailing party. • Dimick v. Dimick, 915 P.2d 254 (Nev. 1996).The prenuptial agreement in Dimick said: “[i]n the event that either party is required to take legalaction to enforce the provisions of this agreement, the non-prevailing party shall be responsible forall attorney's fees and costs of suit relating to said action.” However, the wife stipulated that theagreement was valid, so the husband could not recover his attorney’s fees. Furthermore, thehusband had breached the agreement. • Matter of Marriage of Bowers, 922 P.2d 722 (Or.App. 1996).Majority held that husband was entitled to reimbursement of his legal fees under the followingsentence in his premarital agreement.

If any suit, action or other proceeding or any [sic] from a decision therein, is instituted toestablish, obtain or enforce any right resulting from this agreement, the prevailing party shallbe entitled to recover from the adverse party, in addition to costs and disbursements, an awardof reasonable attorney fees to be set by the trial court or appellate court in any such suit, actionor proceeding.

The majority opinion of this en banc decision explains why such a legal fee reimbursement in apremarital contract is not contrary to public policy.


• Darr v. Darr, 950 S.W.2d 867, 872 (Mo.App. E.D. 1997).While Darr presents a prenuptial contract where the parties agreed to the American Rule aboutpaying for attorney’s fees, Darr is important because the appellate court ordered the trial court onremand to consider whether such an agreement was fair at the time of the divorce litigation, not atthe time the agreement was signed. The complete text of the appellate court’s opinion on this issueis:

In his sole point on appeal husband contends the trial court erred in holding that aprovision in a prenuptial agreement, which precludes effective assistance of counsel for onespouse in the event of a contested divorce is void as against public policy.

In reviewing the court's order we find the court held there is nothing inconsistent withpublic policy in a prenuptial agreement that provides for a husband and wife to pay theirrespective attorney's fees. However, the court concluded that when the facts andcircumstances "at the execution of the agreement demonstrate that one party is unable to payreasonable attorney's fees the waiver is void."

The general rule in awarding attorney's fees in Missouri is that each party bears his or herown litigation expenses. Kovacs v. Kovacs, 869 S.W.2d 789 (Mo.App. W.D. 1994). In order to deviate from this general rule, "very unusual circumstances" must exist. Id. We observe in the instant action an agreement exists providing that each party agreed to paytheir own legal fees, thus acknowledging the application of the general rule. Such provision"... may not be lightly brushed aside." McQuate v. White, 389 S.W.2d 206, 212 (Mo. 1965). "The financial inability to pay for an attorney, and thus the inability to acquire adequate, legalrepresentation, may constitute a very unusual circumstance." Lyles v. Lyles, 710 S.W.2d 440,444 (Mo.App. 1986). In order to determine whether a party has such a condition, it isnecessary to examine the complaining party's financial resources as they exist at the time ofthe dissolution. In fact, where the trial court considers awarding reasonable attorney's fees,this court mandates the trial court inquire into each party's financial status. See Rupnik v.Rupnik, 891 S.W.2d 548, 549 (Mo.App. E.D. 1995).

The question presented before this court is the per se ruling of the trial court which foundthat a clause which waives attorney's fees is against public policy when the facts andcircumstances at the time of the execution of the agreement manifest one party would beunable to pay reasonable attorney's fees in the event of a later contested divorce.

Wife understood that she waived her right to attorney's fees. However, public policy andcase law provide the clause be fair and reasonable. Therefore if the court, after hearing, findsthis clause to be unfair and unreasonable, it must make its decision based upon the economicfacts and circumstances at the time of the dissolution and should not consider the economicstation of the parties at the time of the execution of the agreement. Economic conditions mayhave changed for better or worse since the execution of the waiver.

Therefore, we find the trial court erred in its identity of the time at which the facts andcircumstances determine whether the waiver clause is voidable.

There is no further opinion in Westlaw for Darr, so the final result is not known. • Pond v. Pond, 700 N.E.2d 1130 (Ind. 1998).The Indiana Supreme Court upheld a paragraph of a property settlement agreement (an agreementmade while the parties were still married, but the final draft was signed after the husband had filedfor divorce) that required the loser to pay the winner’s attorney’s fees. Paragraph 25 of thatagreement said:


In the event an attack by one party as to the validity of this agreement is unsuccessful,the party initiating such action shall be responsible for all attorney's fees and costs incurred byboth parties in the prosecution or defense of such action.

Pond, 700 N.E.2d at 1135-36.Note that this paragraph only refers to attorney’s fees for an attack on the validity of the agreement,and “it does not apply to attorney fees relating to the resolution of property division, maintenance,custody, visitation, support, or other issues often incidental to dissolution proceedings.”Pond at 1137.

As previously noted, the trial court, intentionally disregarding Paragraph 25, determined thatthe husband should pay $69,000.00 of the $89,262.25 attorney fees claimed by the wife.[footnote omitted] On remand, the trial court shall give full force and effect to this provisionby determining the amount of reasonable attorney fees and costs that the parties incurreddirectly from the challenge to the validity of the parties' settlement agreement, and shall reduceits prior award of attorney fees accordingly.

Pond, 700 N.E.2d at 1137.The Indiana Supreme Court noted in dicta that:

As a general rule, valid agreements entered into in contemplation of marriage (oftenreferred to as prenuptial, premarital, or antenuptial agreements) must be enforced as written,but the approval of settlement agreements entered into as a consequence of dissolutionproceedings (post-nuptial agreements) is governed by the Indiana Dissolution of Marriage Actand is subject to the trial court's discretion. [footnote and citations omitted]

Pond, 700 N.E.2d at 1132.This dicta would seem to make valid and enforceable a similar fee-shifting section in a prenuptialcontract. • Kantor v. Kantor, 8 P.3d 825, 830-31 (Nev. 2000).Premarital agreement specified that, if either party challenged the validity of the agreement, then theprevailing party would have their attorney’s fees reimbursed by other party. Court ordered wife topay $19,580 of her husband’s attorney’s fees. • DeMatteo v. DeMatteo, 762 N.E.2d 797, 813-14 (Mass. 2002).Massachusetts statute that permits judges to award attorney’s fees trumps an antenuptial contractthat says the breaching party will pay the other party’s attorney’s fees. • In re Marriage of Van Horn, 2002 WL 1428491 (Iowa App. 2002).Valid antenuptial agreement waived attorney’s fees in divorce litigation. • Hardee v. Hardee, 585 S.E.2d 501 (S.C. 2003).Prenuptial agreement, in which each party waived alimony and attorney’s fees from the other, wasvalid and enforceable.


• Lashkajani v. Lashkajani, 855 So.2d 87 (Fla.App. 2 Dist. 13 June 2003) (Appellate court

held that provision in prenuptial contract for prevailing party to have their attorney’s feesreimbursed is unenforceable, “[b]ecause the obligation to pay spousal support during the termof the marriage cannot be contracted away....”), cited with approval in Simmers v. Simmers,851 So.2d 778 (Fla.App. 2 Dist. 9 Jul 2003).1

On the other hand, an intermediate appellate court in another judicial district of Floridaunanimously held the opposite position, saying that a party to a pre- or post-nuptial agreementcould waive attorney’s fees:

In Casto v. Casto, 508 So.2d 330 (Fla. 1987), the court held that "[i]f [a prenuptial]agreement that is unreasonable is freely entered into, it is enforceable." [FN1] Casto was alandmark case that "clarified" the legal landscape on nuptial agreements. Casto established thequaint notion that contracting parties to marital agreements will be held to their bargains —even if the bargain is a harsh one — so long as the agreement is free and voluntary and nottainted by fraud or overreaching. Under Casto, a marital partner may freely and voluntarilygive up any claim to the other's money or property, which presumably includes money forattorney's fees.

[FN1] As Casto itself recognized both prenuptial and postnuptial agreements are governed by thesame rules. 508 So.2d at 333. I shall therefore refer to both kinds as "nuptial" agreements.

....

.... Hence if one can waive rights to property and alimony, surely one can equally waiverights to attorney's fees. I see nothing unique about attorney's fees suggesting a need for adifferent rule. Prenuptial agreements exist primarily to avoid litigation in the event of divorce. We should not make it easier to undermine the essential purpose of a valid prenuptialagreement by funding the very litigation the parties strove thereby to avoid.

Balazs v. Balazs, 817 So.2d 1004, 1004-05 (Fla.App. 4 Dist. 2002)( Farmer, J., concurringspecially). • In re Marriage of Carpenter, 2004 WL 293774 (Cal.App. 2 Dist. 17 Feb 2004).In this unpublished opinion that is not citable in California, the unanimous decision of athree-judge panel in a California appellate court ordered a wife to pay the husband $12,677 for hisattorney’s fees for an appeal, pursuant to the following in a premarital agreement:

In the event of any litigation or arbitration between the parties to enforce any provisions of thisAgreement or any right of any party hereunder, the unsuccessful party to such litigation orarbitration shall pay the successful party's costs and expenses, including reasonable attorneys'fees, incurred therein.

The appeal that created the $12,677 debt was reported at In re Marriage of Carpenter,122 Cal.Rptr.2d 526 (Cal.App. 2 Dist. 2002), where wife’s litigation was financed by orderinghusband to pay wife $10,000 in alimony pendente lite, which amount was not reimbursed. Ironically, in the first appeal, the husband paid for his wife’s legal fees via alimony pendente liteand his wife eventually paid for his legal fees.

1 After this essay was written, the Florida Supreme Court reversed the intermediate appellatecourt. Lashkajani, 911 So.2d 1154 (Fla. 2005).


remarks about fee shifting in conventional divorce litigation

In the absence of a written contract about reimbursement of attorney’s fees, one might expect

judges to simply apply the American Rule that makes each party responsible for paying for theirown legal fees. However, such a Rule is said to be unjust when one spouse has much largerincome than the other, so divorce courts in some states routinely make the party with a largerincome pay at least part of the attorney’s fees incurred by their [soon-to-be] ex-spouse, in additionto all of their own legal expenses. A court could order the wealthier spouse to pay alimonypendente lite (APL) to the poorer spouse, or a court could order that the wealthier spousespecifically pay money for the poorer spouse’s attorney’s fees, as either interim fees or in the finalorder in the case.

Quotations from some reported court opinions shows the reasoning of some judges indivorce courts. First, consider a case in California in 1985:

Where the wife is as financially disadvantaged as compared to the husband as is truehere, "The obligation to provide for the wife is not subordinate to those owed other persons. If necessary the husband must invade his investments to provide the wife with the sinews toconduct her litigation with him." (Rosenthal v. Rosenthal (1961) 197 Cal.App.2d 289, 298,17 Cal.Rptr. 186 [, 191].) Money is the mother's milk of more than politics.

In re Marriage of Hatch, 215 Cal.Rptr. 789, 794 (Cal.App. 1 Dist. 1985).A case in Pennsylvania in 1991 said tersely:

APL is based on the need of one party to have equal financial resources to pursue a divorceproceeding when, in theory, the other party has major assets which are the financial sinews ofdomestic warfare.

DeMasi v. DeMasi, 597 A.2d 101, 104 (Pa.Super. 1991), appeal denied, 629 A.2d 1380 (Pa.1993). Quoted with approval in:• Spink v. Spink, 619 A.2d 277, 279 (Pa.Super. 1992);• Nemoto v. Nemoto, 620 A.2d 1216, 1221 (Pa.Super. 1993);• Musko v. Musko, 668 A.2d 561, 565 (Pa.Super. 1995)(“The purpose of alimony pendente lite

is to preserve economic equality between the parties pending the resolution of equitabledivision, thereby allowing the dependent spouse to maintain or defend the divorce action.”), rev’d, 697 A.2d 255 (Pa. 1997)(“antenuptial agreement which states that a spouse ‘shall notbe entitled to receive any money or property or alimony or support’ in the event of divorce orseparation precludes the award of alimony pendente lite (APL)”);

• Litmans v. Litmans, 673 A.2d 382, 388 (Pa.Super. 1996);• Gerlach v. Gerlach, 2000 WL 1616819, 46 Pa. D. & C.4th 109 (Pa.Com.Pl. 18 Feb 2000)

(Trial court followed Pennsylvania Supreme Court in Musko: because wife had signedantenuptial agreement that waived "all claims for alimony and support", wife was not entitledto alimony pendente lite.).


The traditional view is expressed by a Minnesota appellate court:

The husband also contests the award of $5,000 attorney's fees to allow the wife to pursuethis appeal. Although the antenuptial agreement includes a waiver of attorney's fees, we findthat the trial court's award was necessary to ensure substantial justice. Had the trial court notawarded attorney's fees for appeal, the wife would have been financially foreclosed fromappealing the trial court's decision on the validity and coverage of the agreement. Such difficult and close questions should be decided on the merits, not by the parties' finances.

Hill v. Hill, 356 N.W.2d 49, 58 (Minn.App. 1984).More recently, the highest court in New York State explained a statute authorizing courts to orderone party in divorce litigation to pay the other party’s attorney’s fees.

Recognizing that the financial strength of matrimonial litigants is often unequal — workingmost typically against the wife — the Legislature invested Trial Judges with the discretion tomake the more affluent spouse pay for legal expenses [footnote omitted] of the needier one. The courts are to see to it that the matrimonial scales of justice are not unbalanced by theweight of the wealthier litigant's wallet.

O'Shea v. O'Shea, 711 N.E.2d 193, 195 (N.Y. 1999).

The phrase “domestic warfare”, used by the court in the above-cited DeMasi case inPennsylvania, is not hyperbole: the pettiness and unreasonableness of much divorce litigation istruly appalling, and a colossal waste of money.2 I believe it is outrageously unfair when courtsorder the wealthier victim of such litigation to pay for opposing counsel to attack his/her assetsand, of course, the wealthier victim also pays for his/her attorney to defend his/her assets. This unfairness is increased when the poorer party attempts to use litigation to avoid her/hisresponsibilities under a written pre- or post-marital agreement. After receiving the benefit of abargain, a party should not complain about the alleged unfairness of that bargain. Instead ofviewing counsel fees as necessary to justice and fairness, I believe that counsel fees are food forthe Hydra of litigation — a monster who deserves to be starved.

One of the justifications for ordering the wealthier party (traditionally: H) in divorce litigationto pay the poorer party’s (traditionally: W’s) legal expenses is that married parties have a legal dutyto support each other. But after the parties are separated, W no longer provides any services to H,so one must ask why it is reasonable for H to continue to pay money to W, instead ofW becoming employed and earning an income. I suggest that, if H has any obligation to pay forboth parties’ attorney’s fees, such fees ought to be limited to an uncontested divorce, includingdrafting a property settlement agreement that follows the terms in the prenuptial agreement.

One must wonder about judges in divorce courts who order the wealthier party to pay theother party’s legal expenses, in the absence of a pre- or post-nuptial agreement to that effect. While judges in divorce courts justify such orders on the basis of “fairness”, such a concept offairness is not found in litigation in tort and contract law in the USA. For example, when an

2 Standler, Litigated Divorce in the USA As a Waste of Assets, http://www.rbs2.com/waste.pdf (July 2008).

http://www.rbs2.com/waste.pdf


individual (e.g., injured consumer or ex-employee) sues a large corporation: the corporation tendsto bury the little guy in motions, the large corporation is uncooperative in discovery3, and thecorporation tries to exhaust the little guy’s litigation budget. Large corporations often infringepatents belonging to individuals, knowing that the individual can not afford to sue the corporationfor patent infringement. If it is truly unjust when one party in litigation has much larger financialresources than the other, why doesn’t a legislature pass a statute requiring employers who arebeing sued for wrongful discharge pay for their ex-employee’s attorney’s fees, even if theex-employee loses in court? In my opinion, the rules for ordering one party to pay for the otherparty’s attorney’s fees should be the same in all kinds of litigation, instead of separate rules fordivorce litigation.4

No one would want to see a wealthy husband mistreat his wife during the marriage —

knowing that the wife can not afford divorce litigation — and, after divorce is filed by one party,the husband uses his ample income to pound his impecunious wife into oblivion in the courts. However, it is also abhorrent for a perfidious [soon-to-be] ex-wife to drag her [soon-to-be]ex-husband through expensive, prolonged, and petty divorce litigation, and it adds injury to insultwhen she demands that he pay for her attorney to attack him. To anyone except divorce attorneysand judges in divorce court, spending many tens of thousands of dollars on a litigated divorcewould be considered dissipation of marital assets.5

A prenuptial agreement might prevent the waste of money on divorce litigation, if it specifies

either (a) the loser pay the winner’s legal expenses or (b) during a separation or after a divorce,neither party is entitled to financial support6 — including attorney’s fees — from the other.

3 When the little guy wins a motion to compel discovery, the big corporation often sends morethan 10,000 pages of paper in response to a discovery request, knowing that the little guy’s attorney willnot be able to carefully read and consider all of that paper.

4 A socialist’s solution might be to have all litigators for individuals paid by the state, so that allindividuals have meaningful access to the courts, regardless of whether they sue their former spouse,another person, a corporation, or the government. Such a program would parallel states paying forphysicians to treat all sick and injured people. See Justice Black’s dissent to denial of certiorari inMeltzer v. C. Buck LeCraw & Co., 402 U.S. 954, n. 1 (1971) (“Persons seeking a divorce are nodifferent from other members of society who must resort to the judicial process for resolution of theirdisputes. Consistent with the Equal Protection Clause of the Constitution, special favors cannot andshould not be accorded to divorce litigants.”).

5 See, e.g., Standler, Litigated Divorce in the USA As a Waste of Assets, http://www.rbs2.com/waste.pdf , 33 pp., 6 July 2008.

6 This latter option is currently only available in a few states, such as Pennsylvania afterMusko, 697 A.2d 255 (Pa. 1997).

http://www.rbs2.com/waste.pdf


On 30 June 2005, 14 months after I posted the first version of this essay at my website, the

Florida Supreme Court held that a valid prenuptial contract can award attorney's fees to theprevailing party in litigation to enforce the terms of the prenuptial contract. Lashkajani v.Lashkajani, 911 So.2d 1154, 1160 (Fla. 2005) (“... we hold that prenuptial agreement provisionsawarding attorney’s fees and costs to the prevailing party in litigation regarding the validity andenforceability of a prenuptial agreement are enforceable.”). The contract in issue in that case said:

ATTORNEY’S FEES AND COSTS. Should any party retain counsel for the purpose ofenforcing or preventing the breach of any provision of this Agreement, including, but notlimited to, by instituting any action or proceeding to enforce any provision hereof, fordamages by reason of any alleged breach of any provision, for a declaration of such party’srights or obligations or any other judicial remedy, then the prevailing party shall be entitled toreimbursement from the losing party for all reasonable costs and expenses incurred,including, but not limited to reasonable attorney’s fees and costs for the services rendered tothe prevailing party.

Lashkajani, 911 So.2d at 1156.My search on 14 Aug 2009 of Westlaw databases for judicial opinions in all fifty states showedthat no court outside of Florida has cited Lashkajani. This is still controversial law in theyear 2009.

My August 2009 essay on waivers of alimony in prenuptial contracts athttp://www.rbs2.com/dwaiver.pdf also mentions a few cases in which waiver of attorney’s fees(often together with a waiver of alimony pendente lite) was allowed.

1.A. Another Attorney’s Fees Proposal

If it is anticipated that one party will have a much larger income or assets than the other (e.g.,marriage of a physician and an unemployed homemaker; marriage of an heir to a large fortune),one might consider including the following in a prenuptial agreement.

Whereas the parties are aware that many people waste tens ofthousands of dollars in attorney’s fees at divorce and prolongthe agony of divorce by several years;

Whereas the parties desire, if the marriage is irretrievablybroken, to have a simple, quick, inexpensive, and uncontesteddivorce and property division, according to the terms of thisprenuptial agreement, and then promptly continue with theirseparate lives;

....

(A) If, at the time of divorce, one party’s income [or separateassets] is more than three times the amount of the otherparty’s income [or separate assets], the wealthier party agreesto pay the reasonable attorneys’ fees for each party, providedthat the other party pursues an uncontested divorce according

http://www.rbs2.com/dwaiver.pdf


to the terms of this prenuptial contract. Such payment of theother party’s attorney’s fees includes drafting and negotiatinga property settlement agreement that follows exactly the termsin this prenuptial contract, as modified by any writtenpostnuptial contract that is signed by both parties.

(B) If the wealthier party files with a court any challenge tothe validity of this prenuptial contract, or begins to litigateany dispute arising from the marriage, then the wealthier partyshall pay all reasonable attorney’s fees of the other party inconnection with the dissolution of the marriage, including anylitigation.

(C) However, if the other party files with a court any challenge

to the validity of this prenuptial contract, or begins tolitigate any dispute arising from the marriage, then thecontractual duty of the wealthier party to pay any attorneyfees incurred by the other party shall immediately cease.

Paragraph B makes clear that this is not a one-sided attempt by the wealthier party to minimizehis/her attorney’s fees, but is instead an attempt to honor the terms of the prenuptial contract and tohave an uncontested divorce.


2. Integrated Agreement

In conventional commercial contracts, one sometimes includes a section known to attorneys

as an “integration clause”, examples of which are:This written contract represents the entire agreement7 betweenthe parties, and all preliminary and contemporaneousnegotiations are merged into and incorporated in this writtencontract.8

orThis agreement constitutes the entire agreement of the partiesin relation to the subject matter hereof and there are nopromises, representations, conditions, provisions or termsrelated to the subject hereof other than those set forth inthis Agreement. This Agreement supersedes all previousunderstandings, agreements, and representations between theparties regarding the subject matter hereof.9

At any litigation concerning the contract, the presence of an integration clause will invoke theparol evidence rule, which prohibits admission of evidence for the purpose of altering orcontradicting the terms of the written contract.10 The excluded evidence includes both (a) oraltestimony in court and (b) written evidence, such as e-mails, memoranda, notes, and letters.

I emphasize that an integration clause should not be used in any hastily drafted contract, thatmight not be an accurate expression of the intent of the parties. However, in a carefully draftedcontract, which is negotiated over a period of months and which goes through perhaps at least fourwritten drafts, each of which are discussed by both parties and their attorneys, an integration clausemight be appropriate. Before including an integration clause, both parties should be certain that thewritten contract is a complete recitation of all of their promises and agreements.

As the marital relationship evolves with experience, the parties can negotiate a writtenpostnuptial contract that amends or supplements their prenuptial contract. Because the unity ofhusband and wife, which formerly prevented the validity of postnuptial contracts in many states,

7 Alternatively, “entire agreement” might be replaced with “full and complete understanding”.

8 Alternatively, the merger clause might be replaced with “this written contract supersedes allprior negotiations, representations, promises, and statements.”

9 Quoted from contract in Lubin & Meyer, P.C. v. Lubin, 693 N.E.2d 136, 138 (Mass. 1998).

10 Restatement Second Contracts § 215 (1981). The parol evidence rule does not apply where thecontract was procured by fraud, duress, or mutual mistake, or if the contract is an illegal bargain. Restatement Second Contracts § 214 (1981).


has been abolished, the modern trend is to treat prenuptial and postnuptial contracts in the sameway.11

The advantage of an integration clause is that litigation about the contract is less likely to

involve whining by one party who now wishes that she/he had not signed the original contract, orwho now wishes that the original contract had been written differently.

contract litigation not involving divorce

For the convenience of specialists in family law who may not be familiar with commercialcontract law, I list some recent decisions in the Northeastern USA about integrated contracts incases not involving divorce.

Connecticut The parol evidence rule does not of itself, therefore, forbid the presentation of parol

evidence, that is, evidence outside the four corners of the contract concerning mattersgoverned by an integrated contract, but forbids only the use of such evidence to vary orcontradict the terms of such a contract. Parol evidence offered solely to vary or contradict thewritten terms of an integrated contract is, therefore, legally irrelevant. When offered for thatpurpose, it is inadmissible not because it is parol evidence, but because it is irrelevant. By implication, such evidence may still be admissible if relevant (1) to explain an ambiguityappearing in the instrument; (2) to prove a collateral oral agreement which does not vary theterms of the writing; (3) to add a missing term in a writing which indicates on its face that itdoes not set forth the complete agreement; or (4) to show mistake or fraud. [citation omitted] These recognized exceptions are, of course, only examples of situations where the evidence(1) does not vary or contradict the contract's terms, or (2) may be considered because thecontract has been shown not to be integrated; or (3) tends to show that the contract should bedefeated or altered on the equitable ground that relief can be had against any deed or contract inwriting founded in mistake or fraud. [three citations omitted]

Because we hold that the absolute pollution exclusions are unambiguous as applied to thefacts of this case, the parol evidence rule bars the introduction of any extrinsic evidence to varyor contradict the plain meaning of the term "pollutant" as it is used in those exclusions.

Heyman Associates No. 1 v. Insurance Co. of State of Pa., 653 A.2d 122, 135 (Conn. 1995).quoted in HLO Land Ownership Associates Ltd. Partnership v. City of Hartford, 727 A.2d 1260,1265 (Conn. 1999); Schilberg Integrated Metals Corp. v. Continental Casualty Co.,819 A.2d 773, 794 (Conn. 2003).

It is true that extrinsic evidence may be introduced to clarify the meaning of terms in anintegrated contract. Such evidence may not be used, however, once the terms are found tohave a clear and unambiguous meaning, as we have found to be the case here. [citationsomitted]

Buell Industries, Inc. v. Greater New York Mut. Ins. Co., 791 A.2d 489, 501, n. 17 (Conn. 2002).

11 See, for example, Ronald B. Standler, Prenuptial and Postnuptial Contract Law in the USA,August 2003, http://www.rbs2.com/dcontract.pdf .

http://www.rbs2.com/dcontract.pdf


MassachusettsIn dicta, the Massachusetts Supreme Judicial Court wrote:

He relies on the principle that when in a written contract is a stipulation that the contract recitesall the inducements to its execution, that no representation not embodied therein shall bebinding and no agent has power to modify or waive any of its terms, evidence extraneous andcontradictory to its terms is not admissible. [five citations omitted] That principle rests uponthe policy of the law that contracts in writing freely made by intelligent and competent personsought to stand and be enforced.

Brown v. Grow, 144 N.E. 403, 404 (Mass. 1924). New York

Courts and commentators addressing the substantive and procedural aspects of NewYork commercial litigation agree that the purpose of a general merger provision, typicallycontaining the language found in the clause of the parties' 1995 Agreement that it "representsthe entire understanding between the parties," is to require full application of the parolevidence rule in order to bar the introduction of extrinsic evidence to vary or contradict theterms of the writing (see, Citibank v. Plapinger, 66 N.Y.2d 90, 94-95, 495 N.Y.S.2d 309,485 N.E.2d 974; Judnick Realty Corp. v. 32 W. 32nd St. Corp., 61 N.Y.2d 819, 822, 473N.Y.S.2d 954, 462 N.E.2d 131; S. Kaye, The Parol Evidence Rule Generally, in 3Commercial Litigation in New York State Courts § 36.3, at 390, n 82 [Haig, et al., eds.1995]). The merger clause accomplishes this objective by establishing the parties' intent thatthe Agreement is to be considered a completely integrated writing (see, Fogelson v. RackfayConstr. Co., 300 N.Y. 334, 340, 90 N.E.2d 881, rearg. denied 301 N.Y. 552, 93 N.E.2d349; Restatement [Second] of Contacts § 216, comment c; 3 Corbin, Contracts § 578, at411; 2 Farnsworth, Contracts § 7.3, at 205). A completely integrated contract precludesextrinsic proof to add to or vary its terms (W.W.W. Assocs. v. Giancontieri, 77 N.Y.2d 157,162, 565 N.Y.S.2d 440, 566 N.E.2d 639).

Matter of Primex Intl. Corp. v. Wal-Mart Stores, 679 N.E.2d 624, 627 (N.Y. 1997),cited in Jarecki v. Shung Moo Louie, 745 N.E.2d 1006, 1009, 722 N.Y.S.2d 784, 786 (N.Y.2001) (“The purpose of a merger clause is to require the full application of the parol evidence rulein order to bar the introduction of extrinsic evidence to alter, vary or contradict the terms of thewriting The merger clause accomplishes this purpose by evincing the parties' intent that theagreement ‘is to be considered a completely integrated writing’.” [citations omitted]).

divorce cases

There are only a few reported divorce cases on this topic. The following are all of the divorcecases that mentioned the existence of an integrated agreement that I found in quick searches ofWestlaw on 24-25 March 2004.

An old Wisconsin Supreme Court case held that the existence of a written antenuptial contractprevented admission of testimony about a prior oral agreement that contradicted the writtencontract. In re Paulson's Will, 31 N.W.2d 182, 184 (Wis. 1948).


An appellate court in Ohio wrote:

All parties accept the contractual validity of antenuptial agreements in Ohio. Troha v.Sneller (1959), 169 Ohio St. 397, 159 N.E.2d 899. Accordingly, we will apply generalcontract principles relative to extrinsic evidence as affecting the written agreement. Where theparties have deliberately put their entire agreement into writing, and the writing is clear andunambiguous, courts will refuse to permit parol evidence to vary the terms. The principle isthat the writing itself is more reliable evidence of the parties' intention than their memories. The objection to the use of such evidence is not that it may be oral, but that it goes beyond thefour corners of the agreement and thus would be used to show something which is not a termof the agreement. 30 Am. Jur 2d 149, Evidence, Section 1016.

However, contracts may rest partially in writing and partially in parol. The rule of partialintegration is a well-established exception to the parol evidence rule and is invoked where theentire agreement has not been reduced to writing. Where a contract is partly written andpartly oral, parol evidence is admissible to prove the oral terms. 21 O. Jur. 2d 680, Evidence,Section 660.

Hunter v. Conner, 1981 WL 5223 at *2 (Ohio App. 12 Dist. 21 Oct 1981). And an appellate court in Indiana wrote:

However, if on remand, the trial court, upon consideration of the proper standard regardingunconscionability, enforces the antenuptial agreement, the terms of the agreement willpreclude the award of rehabilitative maintenance and findings will be unnecessary. The integration clause of the agreement provides:

§ 12. Entire Agreement. This Antenuptial Agreement contains the entire understandingand agreement of the Parties. No representations, warranties, promises, covenants orundertakings, oral or otherwise, other than those expressly stated herein, have been made. This agreement shall not apply to matters of spousal maintenance or claims premisedupon a mental or physical impairment that materially affects the ability of the impairedperson to provide for himself or herself. Such matters, if they should arise, shall remainat issue and shall be determined by a court of competent jurisdiction having due regardfor the provisions made hereunder for each spouse.

(Record, 43.) The agreement precludes an award for anything other than "spousalmaintenance or claims premised on physical or mental impairment." Because there isno question of impairment in this case, the issue is whether the term "spousal maintenance"includes rehabilitative maintenance.

Justus v. Justus, 581 N.E.2d 1265, 1277 (Ind.App. 5 Dist. 1991).

The Arkansas Supreme Court held that the daughter from father’s first marriage, who was nota party to her father’s antenuptial contract with his second wife, could not give testimony about thecontract.

Because the extrinsic evidence proposed by appellant [i.e., daughter] does not concernindependent, collateral agreements, it must be offered to alter the antenuptial agreement. As such, the evidence is excluded by the parol evidence rule. Under that rule, all prior andcontemporaneous proposals and agreements merge into the written agreement, which cannotbe added to or varied by parol evidence. City of Crossett v. Riles, 261 Ark. 522, 549 S.W.2d800 (1977). This rule applies only to documents that the parties intended as a final andcomplete expression of their agreement. See Farmers Coop. Ass'n, Inc. v. Garrison, 248Ark. 948, 454 S.W.2d 644 (1970). In the present case, the antenuptial agreement contains


what is termed a "merger clause." The clause reads, "The provisions contained in thisagreement represent the entire understanding between prospective husband and prospectivewife pertaining to their respective property and marital property rights."

Rainey v. Travis, 850 S.W.2d 839, 841 (Ark. 1993). An unpublished opinion of a Wisconsin appellate court said:

The Supreme Court of Wisconsin has explained the parol evidence rule: When the parties to a contract embody their agreement in writing and intend thewriting to be the final expression of their agreement, the terms of the writingmay not be varied or contradicted by evidence of any prior written or oralagreement in the absence of fraud, duress, or mutual mistake.

Federal Deposit Ins. Corp. v. First Mortgage Investors, 76 Wis.2d 151, 156,250 N.W.2d 362, 365 (Wis. 1980). ....

In its written memorandum, the trial court referenced the following clauses declaring theintent of the parties in the premarital agreement:

[I]t is the intention of both Mr. Becker and Mrs. Portnoy that their respective rightsin each other's property and estate, accruing by law or otherwise, during their marriageand upon the termination of their marriage by the death of one or both of the partieshereto, or by divorce, annulment or legal separation, shall be determined and fixed solelyand entirely by this Agreement; .... ... This Agreement represents the entire agreement and understanding betweenMr. Becker and Mrs. Portnoy in respect to their property rights and obligations withrespect to each other, and this Agreement (including this provision against oralmodification or waiver) shall not be modified or waived except in writing dulysubscribed and acknowledged by the parties hereto. [footnote omitted][Emphasis added by Wisconsin Appellate Court]The trial court concluded that the language of the pre-marital agreement made clear that

the agreement was to be the sole document to be considered when determining the rights andobligations between the two parties during and after the marriage. The trial court furtherstated: "It cannot be argued that the August note does not relate to the same subject matter asthe pre-marital agreement." Thus, the trial court refused to enforce the provisions of theAugust note.

We conclude that the trial court correctly determined that the pre-marital agreementcontained express language indicating that no other agreement was to govern the rights andobligations of the parties. .... Thus, we affirm the judgment of the trial court.

Portnoy v. Becker, 1994 WL 32061 at *2-3 (Wis.App. 8 Feb 1994). An Ohio appellate court said:

Moreover, when the agreement of the parties is integrated into an unambiguous, writtencontract, courts should give effect to the plain meaning of the parties' expressed intentions. [citation omitted] Intentions not expressed in the writing are "deemed to have no existence"and may not be shown by parol evidence. [citation omitted] ....

In the instant case, the substance of the alleged oral agreement between appellant andappellee was clearly within the scope of the integrated separation agreement. The separationagreement related to all aspects of appellant's and appellee's property. If an oral agreementhad been made before the marriage, and appellee relied on the oral promise, then she shouldhave included the terms of that promise in the written separation agreement, instead ofabsconding with appellant's money two years after the dissolution of the marriage.


Morgan v. Morgan, 711 N.E.2d 1059, 1064 (Ohio App. 7 Dist. 1998) An unpublished opinion of a Virginia appellate court said:

The general rule in Virginia is that parol evidence is inadmissible to vary, contradict, orexplain the terms of a complete, unambiguous, unconditional written contract.[citation omitted] The prenuptial agreement in this case is unambiguous, and, therefore, parolevidence is not admissible. Additionally, the agreement includes an integration clause inparagraph 8, which supports the inadmissibility of parol evidence.

Golembiewski v. Golembiewski, 2003 WL 22290032 at *5 (Va.App. 7 Oct 2003).The premarital contract in Golembiewski established that each party could continue to acquireseparate property, which would not be considered martial assets subject to distribution at divorce.

3. Validity of Prenuptial Contract a Condition for Marriage?

Some people want to have an unconventional marriage, for example they may want to keeptheir earned income in separate accounts and accumulate no jointly-titled property. For example,one spouse might pay the mortgage, real estate taxes, and own the house, while the other spousepays for all utilities, food, and consumable household items. At divorce, a judge may look at theirprenuptial agreement and consider invalidating it as contrary to public policy, because the marriagedescribed in the prenuptial agreement is so unconventional.

I make the provocative suggestion of including words in such an unconventional prenuptialcontract that the parties have carefully contemplated the decisions reflected in this contract, andeach party agrees that they would choose not to be married unless their marriage and possibledivorce is conducted according to the terms memorialized in this contract. That makes the validityof the prenuptial contract a condition precedent to the marriage.

It would be nice if declaring such a prenuptial contract unenforceable would also automaticallyvoid or annul the marriage — however parties to a marriage do not have the contractual freedom tovoid their own marriage.


divorce cases mentioning condition precedent

There is little reported case law on this topic. The following are all that I could find in myquick searches of Westlaw on 22 March 2004 and 29 August 2009.

An unreported case in Iowa in 1999 said:While Myra was separated from her third husband, the parties met and began a romanticrelationship. They began living together in the late fall of 1990. Approximately six monthsbefore they married, the parties began discussing an antenuptial agreement. It was clearlyunderstood by both parties that an antenuptial contract was a condition precedent to theirmarriage. The antenuptial agreement was negotiated for a six month period.

In re Marriage of Siems, 1999 WL 668764 at *1 (Iowa App. 27 Aug 1999).In this unreported opinion, the court held that the antenuptial agreement was valid and binding. Id. at *3. In January 2003, an unreported appellate decision in Ohio remarked:

The trial court noted that [husband] made it clear to Mrs. Grimm that signing theagreement was a condition precedent to the marriage, and that [husband's] lawyer prepared thedocument at [husband's] request.

Grimm v. Grimm, Not Reported in N.E.2d, 2003 WL 103429, ¶12 (Ohio App. 13 Jan 2003).

An unreported opinion in Connecticut also mentioned a prenuptial contract as a conditionprecedent for the marriage.

Based on the evidence presented, the court finds that the defendant advised the plaintiff,sometime during 1998, that he wanted her to sign a prenuptial contract as a conditionprecedent to marriage.

Intravia v. Intravia, 2003 WL 22480690 at *2 (Conn.Super. 15 Oct 2003).The judge found that the contract was not unconscionable, either at the time it was signed or at thetime of divorce, and the judge ruled the contract was enforceable. An unreported trial court opinion in Connecticut mentioned:

The evidence is clear and uncontroverted that the issue of such an agreement was raisedby the husband at least one year prior to the wedding (in the bathtub to be precise), and that hemade a condition precedent to the wedding itself. He referred to the agreement as an“absolute requirement,” later telling her, “No agreement; no wedding!”

Crews v. Crews, Not Reported in A.2d, 2005 WL 2208546 at *4 (Conn.Super. 2005).The court made the finding:

... other than the usual pre-wedding stresses and pressures, there was no coercion or duressimposed upon the wife"

Ibid. at *7.Wife did not appeal this finding. Crews v. Crews, 945 A.2d 502, 509 (Conn.App. 2008) (“Thecourt found that other than the usual stress of a wedding, there was no coercion or duress imposedon the plaintiff.”).


In each of these judicial opinions, there was only an isolated mention that the prenuptial

contract was a condition precedent to the marriage, and the judge did not infer any legalsignificance to the fact. Divorce or annulment can be granted only by a judge for reason(s)specified in statute — and not automatically by voiding a condition precedent in a prenuptialcontract.

4. Severability or Savings Clauses

If some of the above ideas (or any other ideas that might be unconventional or controversial)are included in a pre- or post-nuptial contract, it might also be a good idea to include a section onseverability, so that the contract remains valid if the judge strikes one or more sections. A typicalseverability provision, sometimes called a “savings clause”, is:

If any one or more section(s) of this contract is held to beillegal, invalid, void, or unenforceable, then all remainingsections shall continue in full force and effect.

When a severability provision is included, the drafter of the contract must be very careful with thearchitecture of the contract, so that each section contains one quid pro quo, i.e., each section mustcontain both benefits and obligations of each party. Otherwise, if one section is stricken by ajudge, one might have an unfair bargain in which one party gets most of the benefits and otherparty gets most of the obligations, contrary to the agreed intentions of the parties.

divorce cases on severability

There is little reported divorce case law on this topic. The following are all that I could find ina quick search of Westlaw on 26 March 2004.

An early case from the District of Columbia mentioned in passing a severability clause in aproperty settlement agreement:

The Agreement expressly provided for the severability of any 'unenforceable' provision. As a general rule, courts have enforced, where possible, the provisions of separationagreements settling property rights between husband and wife which are severable from otherclauses in such agreements, see, e. g., Adler v. Nicholas, 381 F.2d 168, 172 (5th Cir. 1967);Prime v. Prime, 172 Or. 34, 139 P.2d 550 (1943); Puckett v. Puckett, 21 Cal.2d 833, 136P.2d 1 (1943); 2 A. Lindey, SEPARATION AGREEMENTS AND ANTE-NUPTIAL CONTRACTS

§ 33-6 (1967). Indeed, we have encouraged parties to settle their property rights and claimsby agreement rather than leave the task to the courts. Davis v. Davis, [268 A.2d 515];Le Bert-Francis v. Le Bert-Francis, D.C.App., 194 A.2d 662, 663 (1963).

Willcher v. Willcher, 294 A.2d 486, 488-89 (D.C. 1972).

The highest court in New York State honored a severability clause in a separation agreement. Christian v. Christian, 365 N.E.2d 849, 856 (N.Y. 1977).


Frey v. Sargent's Estate, 533 S.W.2d 142, 143 (Tex.Civ.App.-Amarillo 1976) tersely

mentions the presence of a “savings clause” in a prenuptial agreement. Tennessee courts honored a severability clause in an antenuptial contract.

Because the Court of Appeals’ decision voided only the waiver of alimony provision, andbecause the antenuptial agreement contained a severability clause, other provisions of theantenuptial agreement, such as those governing the division of marital property, are not atissue in this appeal.

Cary v. Cary, 937 S.W.2d 777, 778, n. 1 (Tenn. 1996).

The majority opinion in an unpublished Missouri appellate court opinion remarked in passing:The dissent claims that the majority ignored the severability clause in the antenuptial

agreement in finding that the whole agreement was unconscionable. Its reliance on McGilleyv. McGilley, 951 S.W.2d 632 (Mo.App. 1997), to save other provisions of the agreement is,however, misplaced. In McGilley, the trial court found an antenuptial agreement to be voiddue to its ambiguity, not its unconscionability. Id. at 637. The Western District found that theintent of the parties was clear and, therefore, the trial court erred in voiding the entireagreement. Id. at 638. In this case, the antenuptial agreement and, specifically, the provisiondefining and dividing marital property was unconscionable. Other provisions of theagreement, including the maintenance provision, were also unconscionable when readtogether.

Delong v. Delong, 1998 WL 15536, n. 6 (Mo.App. W.D. 20 Jan 1998). An unpublished California appellate court opinion honored a severability clause in an antenuptialcontract:

The trial court was correct in finding said provision unenforceable in the instant agreement,and thereafter severing it from the body of the contract through its severability clause.

In re Marriage of Sullinger, 2002 WL 31794153, at *4 (Cal.App. 4 Dist. 13 Dec 2002).


5. Choice of Law

In contract cases involving commercial contracts, courts traditionally12 choose the law of oneof the following states in resolving the dispute:1. In issues of validity of the contract, chose lex loci contractus — the law of the state where the

contract was made.2. In issues of performance, chose the law of the state where the contract was performed.Modern courts13 choose the law from the choices in the following menu:• Use the law of the state specified in a “choice of law” clause in the contract, provided that state

has a “substantial relationship to the parties or the transaction”. (A valid choice of law clausetakes precedence over the following alternative choices.)

• The law of the state where the contract was negotiated.• The law of the state where the contract was made.• The law of the state where the contract was performed.• The law of the state where the subject matter of the contract (e.g., the land in a contract for

purchase of land) is located.• The law of the location (e.g., state of incorporation or residence) of the parties.In the context of commercial contracts for the sale of goods, this choice of law may not besignificant, because of the uniformity of law amongst the states, owing to the UniformCommercial Code.

In the context of pre- and post-nuptial contracts, the choice of law is critical, because of thevariation amongst the states in the USA. The SECOND RESTATEMENT OF CONFLICT OF LAWS,which was published in 1971, does not mention prenuptial contracts, perhaps because suchcontracts were infrequently interpreted by courts when that book was written and no consensushad yet emerged.

To reduce the amount of unpaid time that I spend writing this section on choice of lawclauses, I have chosen to cite only a few recent cases from the Northeastern USA, plus a fewhistorically important cases nationwide. These cited cases are the result of my quick search of theWestlaw databases on 12-14 April 2004.

12 Restatement (First) Conflict of Laws, §§ 311, 332, 355, 358, 370 (1934).

13 Restatement (Second) Conflict of Laws §§ 186-88 (1971).


general rule

Courts usually interpret a prenuptial contract only in the context of either divorce or death ofone spouse. The general rule seems to be that, in the absence of a choice of law clause in thecontract, courts will apply the law of the state where the prenuptial contract was made, unless thatlaw offends the public policy of the state where the divorce court is located.14 The contract is“made” in the state where it was signed by the parties, which is probably also the state in which atleast one party was living immediately prior to the marriage.• Connecticut: Elgar v. Elgar, 679 A.2d 937 (Conn. 1996) (Wife signed prenuptial

agreement without reading it. Court honored agreement’s choice of law clause for New Yorklaw, although parties were married in Connecticut, and husband remained a resident ofConnecticut, but wife lived in New York.); Mehtar v. Mehtar, 1997 WL 576540 (Conn.Super. 1997) (Court applied South African law to prenuptial agreement negotiatedthere.); Montoya v. Montoya, 2003 WL 1090696 at *2-3, 34 Conn. L. Rptr. 266(Conn.Super. 2003) (Court honored agreement’s choice of law clause for New York law,although parties were married in Connecticut and lived in Connecticut).

• Delaware: Hill v. Hill, 262 A.2d 661 (Del.Ch. 1970), aff’d, 269 A.2d 212 (Del.Supr. 1970)(“where the parties had signed a prenuptial agreement in the state of Maryland, the applicablelaw in determining the validity of the agreement was Maryland law, despite the fact that theproperty contemplated in the agreement was located in Pennsylvania and Delaware.”15).

• Florida: Robbat v. Robbat, 643 So.2d 1153 (Fla.App. 4 Dist. 1994), reviewdenied, 651 So.2d 1195 (Fla. 1995) (Court applied Massachusetts law at the time of thesigning of the contract to a prenuptial contract signed in Massachusetts in 1978, although theparties moved to Florida in 1985, where they divorced in 1991.); In re Estate of NicoleSantos, 648 So.2d 277, 284 (Fla.App. 4 Dist. 1995) (Parties executed prenuptial contract inPuerto Rico, where they were married and lived for the first 12 years of the marriage. Courtapplied law of the place where the prenuptial contract was made. One dissenting judge says atpage 284: antenuptial agreement was “extremely unfair to the widow”, and he believed thatpublic policy required application of Florida law.).

• New Jersey: Chaudry v. Chaudry, 388 A.2d 1000, 1006 (N.J.Super.A.D. 1978),

certification denied, 395 A.2d 204 (N.J. 1978) (Parties signed a prenuptial agreement inPakistan, were married in Pakistan, lived in Pakistan. Husband then moved to New Jersey,while wife remained in Pakistan, and husband obtained a divorce in Pakistan. Wife later sued

14 Alexander Lindey & Louis I. Parley, SEPARATION AGREEMENTS AND ANTENUPTIAL CONTRACTS,§ 110.74, Matthew Bender, October 2003.

15 Quotation from Tarburton v. Tarburton, 1997 WL 878411 at *4 (Del.Fam.Ct. 1997).


husband for alimony in New Jersey court. Court held that Pakistan law applied to prenuptialagreement.).

• Pennsylvania: Sabad v. Fessenden, 825 A.2d 682, 687-88 (Pa.Super. 2003),appeal denied, 836 A.2d 122 (Pa. 2003) (Court applied law of New York to prenuptialagreement, because agreement was negotiated and signed in New York and parties weremarried in New York, where they lived for first seven years of the marriage.).

• Vermont: Padova v. Padova, 183 A.2d 227, 230 (Vt. 1962) (“It is the law of this State[i.e., Vermont] that a contract entered into without the State [e.g., Connecticut], if valid wheremade, will be interpreted here according to the law of the state where made, so long as itsenforcement does not contravene the public policy of Vermont.”).

The same general rule was expressed in an unpublished opinion of the U.S. Court of Appeals inOklahoma:

“Federal courts sitting in diversity must apply the substantive law, including choice oflaw rules, of the state in which they sit.” [citations omitted] In Oklahoma, which is theforum state, the general rule is that validity and interpretation of a contract is governed by thelaw where the contract is made. [citations omitted] The Gants signed their antenuptialagreement in Oklahoma, so under the general rule, Oklahoma law applies. Since neitherparty argues otherwise, we will not consider whether an exception to the general rule iswarranted by the fact that the Gants lived in Texas the entire time they were married.

Gant v. Gant, 1994 WL 410633, n. 4 (10th Cir. 1994).

alternatively:use the law of the place of the divorce

Sometimes courts avoid using the law of the state where the prenuptial contract was made,and simply apply the law of the state where the divorce court is located (i.e., the place of theperformance of the contract). This is easy for the judge, who is most familiar with the local law inhis/her state.• Connecticut: Lakin v. Lakin, 1999 WL 1320464 at *19 (Conn.Super. 1999) (Prenuptial

agreement was signed in California, parties spent first four years of their marriage living inCalifornia, but court applied Connecticut law, because parties had lived in Connecticut for past15 years).

• Florida Gordon v. Russell, 561 So.2d 603, 604 (Fla.App. 3 Dist. 1990) (Applied Florida

law to prenuptial agreement that was signed in New Jersey in 1980.),review dismissed, 570 So.2d 1304 (Fla. 1990).

• Georgia: Scherer v. Scherer, 292 S.E.2d 662, 664 (Ga. 1982) (Parties were residents ofMichigan when they signed an antenuptial agreement and then married in 1976. The partiesmoved to Georgia in 1979, where they filed for divorce in 1980. Although there was a choice


of law clause in the antenuptial agreement for Michigan law, at divorce the parties agreed toapply Georgia law. Court found agreement was valid.).

• Hawaii: Lewis v. Lewis, 748 P.2d 1362, 1365 (Hawai'i 1988) (Parties were residents of

New York when they signed a premarital agreement and then married in 1970. The partiesmoved to Hawaii, where they were divorced in 1985. Court applied Hawaii law.).

• Missouri: Rivers v. Rivers, 21 S.W.3d 117, 121-22 (Mo.App. W.D. 2000) (Parties signed apremarital agreement in Louisiana in 1977 and were married in Louisiana the following day;parties subsequently moved to Missouri, where Wife filed for divorce in 1999. There was nochoice of law clause in the agreement. Court applied Missouri law to the premaritalagreement, which invalidated it. Court noted that it would have honored a choice of lawclause, if one had been in the agreement: “In the absence of an effective choice of law,Missouri uses the criteria found in § 188, The Restatement (Second) of Conflicts of Law(1971)....”).

suggestions for prenuptial contracts

Each prenuptial contract should contain a choice of law clause, because that clause is likely tosimplify the legal issues at divorce. Such a clause probably would choose the state where theparties lived at the time the prenuptial contract was negotiated and where the parties signed theprenuptial contract.

It would be wise if the attorney representing a client in negotiating and drafting a prenuptialcontract would make a paper copy of the current state statute(s) about prenuptial contracts in thechoice of law state. One copy should be put in the attorney’s files, in case the attorney is called totestify as a witness in a future divorce case involving that prenuptial contract. Another copy shouldbe given to the attorney’s client, along with a cover letter explaining that these are the statutes foruse in interpreting the validity of the client’s prenuptial contract. I make this suggestion because, atthe time of divorce many years after the prenuptial agreement was written, it can be a bother to findthe state statutes that were in effect many years ago. The difficulty is increased if the partiesdivorce in a state that is geographically distant from the state in the choice of law clause, so thatlocal law libraries will not have the old state statutes in the choice of law state.


choosing another state’s law?

Can parties residing in state X could include in their prenuptial contract a choice of law clausethat specifies that the contract will be interpreted according to the law of Pennsylvania? (Pennsylvania law gives parties great freedom to avoid marital property, waive alimony pendentelite, waive alimony, etc.) The answer is NO, unless the parties have a “substantial relationship” toPennsylvania (e.g., at least one party is living in Pennsylvania at the time the prenuptial contractwas negotiated and signed). It is an apparently unanswered question if the parties could live andnegotiate a prenuptial contract in state X, but specify Pennsylvania law in their prenuptial contract,based on their intent that the parties would live in Pennsylvania immediately after their marriageand they actually did live in Pennsylvania soon after the prenuptial agreement was signed and soonafter they were married.

6. Risk Allocation

Good contract drafting in a commercial context involves allocation of risks. The sameapproach can be used in prenuptial contracts to anticipate a situation at divorce in which one partyis then unable to earn a living (e.g., as a result of an accident or chronic disease that occurredduring marriage) and, therefore, (1) a prenuptial contract that did not provide for such contingencymight be considered unfair by a divorce court and (2) the disabled spouse would be conventionallydeserving of a larger share of martial assets. The prenuptial agreement might require that eachspouse during marriage shall have:1. disability income insurance policy in the amount of 60% of their earned income or

$60,000/year, whichever is the lesser amount. Policy shall include a cost of living adjustmentand a 90-day waiting period.

2. long-term care insurance (i.e., to pay expenses of nursing home or alternatives)3. $250,000 dismemberment insurance (i.e., to compensate for loss of sight, hearing, or speech,

or amputation of hand or foot)The agreement should also explicitly state that each party agrees to accept these amounts ofinsurance as adequate support in the event of divorce or separation, if they are unable to earn aliving.


Conclusion

Conventional contract law offers many opportunities to help people avoid expensive divorcelitigation, and to structure marriages according to the values and desires of individual people. This essay sketches some examples of how commercial contract law might be used in prenuptialagreements.

A prenuptial agreement might prevent the waste of money on divorce litigation, if it specifieseither (a) the loser pay the winner’s legal expenses or (b) during a separation or after a divorce,neither party is entitled to financial support — including attorney’s fees — from the other.

Attorneys drafting a prenuptial agreement should consider inserting an integration clause, assuggested on page 14 of this essay.

Each prenuptial contract should contain a choice of law clause, because that clause is likely tosimplify the legal issues at divorce. ______________________________________________________________________________

This document is at www.rbs2.com/dcontract2.pdfMy most recent search for court cases on this topic was in March-April 2004.first posted 20 April 2004, minor revision 27 Aug 2009 Go to my webpage at http://www.rbs2.com/famlaw.htm that lists my other essays aboutfamily law.

http://www.rbs2.com/famlaw.htm

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